SZOWT v Minister for Immigration and Citizenship

[2012] HCASL 91

SZOWT

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2012] HCASL 91
S66/2012

1. The applicant is a citizen of Pakistan.

2. The Refugee Review Tribunal ("the Tribunal") dismissed an application for review of a delegate of the first respondent's decision not to grant the applicant a protection visa.  The Tribunal accepted that the applicant had engaged in low-level political activity and had been assaulted as a result.  However, it found that the applicant would have no well-founded fear of persecution for a Convention reason if he relocated within Pakistan.  It found that relocation was reasonably practicable.

3. The Federal Magistrates Court (Barnes FM) dismissed the applicant's application for judicial review of the Tribunal's decision. Apart from an attempt to re-agitate the Tribunal's factual findings, the applicant relied on s 426 of the Migration Act 1958 (Cth). Sub-sections (2) and (3) of s 426 provided:

   "(2)The applicant may ... give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

   (3)If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."

4. The applicant requested that the Tribunal take oral evidence from two particular persons. However, as Barnes FM pointed out, s 426(3) did not oblige the Tribunal to obtain evidence from them. It was obliged to consider the applicant's wishes only, and this it did. There was no other source for a duty to obtain the evidence. It had not been established that the witnesses' evidence would have affected the Tribunal's decision, since the Tribunal made findings favourable to the applicant on the issues to which the witnesses' evidence would have gone.

5. The Federal Court of Australia (Gray J) dismissed an appeal by the applicant from Barnes FM's decision.  His Honour considered that the applicant had failed to show jurisdictional error. 

6. The applicant's application for special leave to appeal to this Court disputes the Tribunal's factual finding that it was possible for him to relocate within Pakistan.  Disagreement with that factual finding is not a sufficient basis to conclude that there was any jurisdictional error in making it.

7. The application is dismissed.

8. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

J.D. Heydon
20 June 2012 V.M. Bell